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Times Are Changing: Smoking In Your Condo

Smokers, beware! "The times, they are a-changing." And with more and more marijuana use, this is now a hot-button topic.

If your next door neighbor in your condominium association cooks his native food which creates an objectionable odor, will your condo board of directors be required to take any action against that neighbor? Probably not. Perhaps the board (or the property manager) will discuss the situation with the neighbor, with a view toward trying to reach a happy solution, but generally this would be a matter to be decided exclusively between the two owners.

But what if your neighbor is a smoker and her smoke filters its way into your apartment. Is the association under any obligation to do anything about this?

A case was brought by an owner claiming that Greenbelt Homes -- a Prince George's Maryland Cooperative Association -- had a duty to enforce the "nuisance clause" in the Cooperative Legal documents. The Circuit Court judge did not agree that the second hand smoke was a "nuisance". According to the Judge, "it is a decision, in my view, that's going to have to be made by the legislature."

And anti-smoking legislation has been enacted all over the country which prohibits smoking in public areas, such as restaurants, public buildings or sports arenas. In fact, the Montgomery County Council -- sitting as the Board of Health -- adopted Regulation 17-210 which prohibits smoking in common areas of multi-family residential dwellings, including condominiums. "No Smoking" signs must be posted in such areas a lobbies, halls, laundry rooms and even playgrounds.

However, the law does not apply to smoking in individual units.

Can a condominium association prohibit smoking in the units? Is the unit your castle? Not really. A classic case from a 1999 California Supreme Court held that "anyone who buys a unit in a common interest development with knowledge of its owners association's discretionary power accepts the risk that the power may be used in a way that benefits the commonality but harms the individual." This approach is universally adopted in courts throughout this country.

Simply stated, every condominium unit owner is legally bound by the existing legal documents as they exist when the unit was initially purchased and as they may be legally adopted from time to time.

What are these legal documents? In condominium law, there is a hierarchy that must be followed by the board of directors and -- if there is litigation -- by a Judge. The highest priority is the condominium act of the state. These condominium laws are designed to provide some flexibility for associations to adopt their own rules to adapt to their particular situations. As time moves on, the associations need the right to periodically change their rules and procedures.

Next, there is the "Declaration", which is a document recorded among the land records in the county (or city) where the property is located. That document tells the world that the property is "declared" to be a condominium, and spells out some basic issues– such as what constitutes a common element versus a unit and a limited common element.

Next in line are the Bylaws -- oversimplified the bible of the association. And finally, there are rules and regulations adopted by the board of directors. The board has great latitude to enact reasonable rules and regs, but their authority to do so must come from the hierarchy above.

For example, if the Bylaws state "no pets", the board cannot change that. However, if the Bylaws allow pets, the board can enact rules such as requiring vaccination, or keeping dogs on a leash while on common property.

To my knowledge, smoking (pro or con) is not mentioned in any of the condo documents that were enacted in the 1980's, 90s, or even in those enacted in the early 2000s. I suspect, however, that with the heavy emphasis on "going green", more and more new or converted condominiums will be - or are now -- smoke free.

What can the Board do? A condominium consists of three parts: common elements -- such as the roof or the elevators; limited common elements -- such as a balcony that cannot be used by everyone, and units. Clearly, it can prohibit smoking in both common and limited common elements. Boards have fairly broad authority to manage and operate the building. But what about banning smoking in individual units.

The board has no authority merely to enact just a rule. A 2007 opinion from the Hawaii Attorney General summarized the law: "a condominium association may regulate smoking in an individual unit...if the association amended its declaration or bylaws to include a smoke-free policy, or if the association found that smoking in an individual unit... unreasonably interfered with the use and enjoyment of other units or the common elements by other unit owners."

The key is to amend the Bylaws or the Declaration; that always requires a super majority vote of either two thirds or even three fourths of the owners. Since the Declaration has a higher level of priority, my preference is also to amend that legal document.

Every condominium document spells out the amendment procedure. The Board on its own initiative -- or by a petition from owners representing a percentage spelled out in the document -- can put a proposal to the membership. Every owner must be provided the language of the proposal, and a specific date on which the vote will take place. Owners may vote in person or by proxy.

Amending condo documents is not easy. The legislators who enacted the condo laws wanted to make sure that a small minority (or even a slim majority) could not change certain basic issues -- issues that impact directly on all owners.

Proponents and opponents of the proposed smoking ban will mount a campaign -- very similar to Presidential political campaigns. One method many associations use to convince reluctant owners to vote in favor of a proposal (such as limitations on the number of investor owners) is to "grandfather" current owners. In other words, current owners may smoke in their units but when they sell, the unit must be smoke free forever.

To my knowledge, only one court case has addressed the issue where a small condominium association amended its declaration to ban smoking in the entire building, including the units. A Colorado court in 2006 upheld the validity of the amendment, primarily because "it was reasonably investigated, drafted and passed by three out of four owners after years of trying to address the problem by other means".

The US Supreme Court weighed in on the smoking debate when it held, in 1973, that the act of smoking is not a fundamental right.

We are now seeing more and more smoking bans being enacted in condominium associations.

Author of the weekly Housing Counsel column with The Washington Post for nearly 30 years, Benny Kass is the senior partner with the Washington, DC law firm of Kass, Mitek & Kass, PLLC and a specialist in such real estate legal areas as commercial and residential financing, closings, foreclosures and workouts.

Mr. Kass is a Charter Member of the College of Community Association Attorneys, and has written extensively about community association issues. In addition, he is a life member of the National Conference of Commissioners on Uniform State Laws. In this capacity, he has been involved in the development of almost all of the Commission’s real estate laws, including the Uniform Common Interest Ownership Act which has been adopted in many states.